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Can you be Arrested with a BAC Below the Limit?

Generally, drivers in California face drunk driving charges if they have a blood alcohol level at 0.08% BAC or higher. This is known as a “per se” DUI. However, anyone can be arrested on suspicion of drunk driving even if the driver is totally sober. There are also lower BAC limits for under-21 drivers and commercial drivers.

It is important to understand that you can be arrested for anything a police officer believes is a violation of the law. The more important issue is to make sure you are not convicted of a crime. This is where the help of an experienced DUI defense lawyer can make a big difference. If you are arrested for a DUI or facing criminal charges in the East Bay, contact the experienced California DUI lawyer Lynn Gorelick today.

What is the limit for a DUI in California?

Driving under the influence (DUI) is a criminal offense for individuals who are alleged to be operating a motor vehicle while impaired by drugs or alcohol. A per se DUI makes it unlawful for a person to drive with a blood alcohol content (BAC) of 0.08% or higher. Even if a person is driving safely and is not impaired, having a BAC of 0.08% or above is against the law.

The BAC limits of drivers in California depends on the driver's age and why the driver is behind the wheel, as follows:


BAC Per Se Limit

Adult Drivers

0.08% BAC

Commercial Drivers


Taxi and Ride-Sharing Drivers (Uber, Lyft)


Under-21 Drivers


Additionally, there may be increased penalties for drivers who are tested with a BAC of 0.20% or higher. This may include a DUI school program for at least 9 months, even for a first offense DUI.

Can you be convicted of a DUI with a BAC below the limit?

You can be convicted of a DUI with a BAC below the per se limit. California DUI laws provide that is it unlawful for a person to drive a vehicle under the influence of alcohol, drugs, or a combination of drugs and alcohol. This is regardless of the BAC percentage.

If a driver is suspected of being under the influence of drugs, a blood test will generally test for the presence of certain drugs in the driver's body, including marijuana, opiates, or other controlled substances. These test results, combined with the police report and officer testimony, can be used by the prosecutor to convince a jury that the defendant was impaired.

With a BAC below 0.08%, the prosecutor may have a higher burden of proof to get a conviction for a DUI. However, the prosecutor may still rely on evidence from the traffic stop, officer testimony, police report, or other evidence to show the driver was impaired.

When a driver has a BAC below the legal limit, an experienced California DUI defense lawyer can do a lot to provide a strong defense. This includes questioning the reliability of chemical testing and field sobriety tests.

Why was I was arrested with a BAC was below the limit?

Drivers who do not feel impaired often agree to submit to a preliminary alcohol screening (PAS) test, sometimes called a breathalyzer. This is the roadside test using a handheld breath testing device. The breath test may come back with a BAC below the limit but the police may still decide to arrest the driver.

Generally, the police will arrest someone with a PAS test below the limit if the officer thinks the breath test was not reliable or the driver was also impaired by drugs. PAS breath tests can be very unreliable. This is why they are voluntary and not required as part of a traffic stop.

There is currently no commonly used or reliable roadside test for testing for drugs. If the police have probable cause to believe the driver is impaired by drugs, they may arrest the driver even if they have a BAC test below the limit. The individual will generally submit a blood or urine test after being arrested to test for the presence of drugs.

DUI Defense by East Bay Criminal Defense Lawyer

East Bay attorney Lynn Gorelick has more than 35 years of DUI experience and understands how unreliable police chemical testing can be. If you are facing criminal charges for a DUI in Contra Costa County and Alameda County, contact East Bay DUI lawyer Lynn Gorelick today.

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